The hidden pitfalls of YouTube’s CC licence

Last week, YouTube introduced a new feature: video uploads can be made available under a Creative Commons Attribution licence. What this licence means is that anyone is allowed to use the video, or parts of it, for any purpose, including commercially, on condition they credit the original author. It’s the nearest thing to public domain without actually being public domain.

The really interesting aspect of this is that videos set to this licence can be found using the YouTube online video editor: if you want to add some zip to your own video, you can use the YouTube editor to look for CC-licenced videos and edit them into your own. There are numerous possibilities here: for example, I could upload the beginning of a sketch, set it to CC, and challenge you to film and upload an ending, and use the video editor to add my beginning to your ending. This is pretty much in keeping with the whole ethos of Creative Commons, and YouTube’s recognition of that should be applauded.

Unfortunately, using this option is one thing; using this option legally is a whole other thing. One of the things that has become obvious to me over the years (and bear in mind that I am not a lawyer) is that there is a whole lot of ignorance about copyright law, and this is likely to cause problems for many people. You can’t release anything you want under this licence. In fact, the list of things you can release is vanishingly small, and is restricted to videos that consist exclusively of the following:

• content that is entirely your creation;
• content whose copyright has expired (which can take as much as 120 years);
• content which has been explicitly released into the public domain by the original author;
• content which has been released by the original author under a Creative Commons Attribution, Sampling or Sampling+ licence, but no other type of CC licence.

That last point is especially nasty: it means that you cannot use most types of Creative Commons material in your video if you want to release it as CC-BY. The potential for users incorrectly (and illegally) releasing videos under a CC licence is vast.

This poses a problem for people wanting to use the YouTube video editor to make mashups of this kind. Let’s say I illegally upload a scene from an episode of Doctor Who and (also illegally) set it to CC-BY. A little later, you fire up the YouTube video editor and, browsing through the CC content, find my video. “Perfect,” you say: “the exact scene I need, and it’s Creative Commons Attribution so it’s legal for me to use!”

Obviously, it’s not legal for you to use, but you used it in good faith — after all, I’m the one who convinced you it was legal. But is that going to stop the BBC filing a copyright infringement notice against your video and putting your entire account one-third of the way towards termination? And what would be your legal position? To what extent are you liable? Should you have researched more carefully? Ignorance is never a good defence, but just how thorough does your research have to be? Suppose it wasn’t something as obvious as a TV show, but a music video from a no-name band of the sort that might legitimately be expected to release their music under a Creative Commons licence?

It’s a nice feature, but it could have lots of unintended consequences. Let’s just hope YouTube has thought about these questions.